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Scandinavian Realism

Introduction
The American realists were practising lawyers or law teachers who sought to approximate
legal theory to legal practice. In Scandinavia, the group of jurists known as realists
approached their tasks on a more abstract plane and with the training of philosophers.
Axel Hagerstorm
 Known as spiritual father.
 His basic proposition was as that he denied the existence of objective values. There
was no such thing as goodness and badness in this world.
 These words simply represent emotional attitudes of approval and disapproval
respectively towards certain facts and situation. It is only language form that has
created an illusion of objectivity.
 He criticised Austin’s command theory. For him, the word duty only express an idea,
the association of feeling of compulsion with regard to a desired course of conduct.
 This led Hagerstorm to deny the possibility of any science of the nought. All
questions of justice, aims and purposes of law are matters of personal evaluation and
not susceptible to any scientific process of examination.
 In this way, many of the traditional problems of legal philosophy became illusionary.
 He rejected the notion of right-duty relationship and the theory of legal obligations.
For him, these are merely psychological notions.
 It must be replaced with the examination of actual use of the legal terms and a
psychological analysis of the mental attitudes involved.
 He applied this to study of Roman Law. He set forth the thesis that Roman Law was
based on magical beliefs in the power of words to affect happenings in the world of
fact.
Lunstedt

 Vilham Lundstedt might be regarded as the most extreme of the Scandinavian. ‘rights’ and ‘duties’ are seen rather than as ideas or even illusions which have real effects through the psychological or emotional feelings which then induce and which in turn underpin the efficacy of law.  Judges should think in terms of social welfare because the notion of ‘right’ or ‘wrong’. Water from the reservoir filtered through to the disused mine shafts and then spread to a working mine owned by the claimant causing extensive damage. The invocations of justice is purely subjective and unacceptable metaphysical claims. contract and criminal law with a view to prevent disruption of society.  He emphatically stated that law is not founded on the notion of justice but it is based on social pressure and needs of the society. In the place of justice. but on social needs and pressure.  Lunstedt rejected all English conceptual theories of law which are metaphysical in nature and have only theoretical significance. Held: The defendants were strictly liable for the damage caused by a non.  He considered that there was no objective way to define the requirements of justice.  He was inspired to extent the principle of strict liability in matters relating to disputes concerning torts. To show social welfare: Rylands v Fletcher The defendant owned a mill and constructed a reservoir on their land.  For him. law is not founded on justice. Lunstedt substituted the method of social welfare in which the encouragement’ guiding motives where people strives to attain.  Instead law and legislations should be guided by social welfare centered on objective study of social conditions and of the practical effects and capabilities of law in improving society for all its members.natural use of . The reservoir was placed over a disused mine.

 Law is nothing but a set of social facts. Lord Cranworth: “If a person brings. In his opinion. however careful he may have been. If it does escape.”  Lunstedt idea is extreme. An invalid law is not binding. and cause damage. he does so at his peril. He rejected the view that laws are a command or an expression of the will of the State and argued that they are independent imperatives issued by constitutional agencies of the State from time to time. His writings emphasis psychological significance of legal ideas. on his land anything which. the notion of binding force only exists in the mind of . and whatever precautions he may have taken to prevent the damage. It’s a myth. a right is only a word for the favourable position enjoyed by a person in consequence of the functioning of legal machinery is that everything depends on why a court viewed his position favourably. duties will only distort what actually goes on.  There is no such thing as the binding force behind the law. It happens too that a person may enjoy a favourable position by virtue of a right even though it is socially undesirable that he should do so. Olivecrona  He was a pupil of Axel Hagerstorm. The wholesale rejection of right. he is responsible. if it should escape. may cause damage to his neighbour.  It is also not clear how far the method of social welfare represents the observable pattern of administration and how far it is what Lunstedt himself would have liked to see. For instance. a person may break the law and go undetected yet no one would say that the law is not binding on him. or accumulates. an answer to his proposition is that.  Law has a binding force as much as it is valid.land. This is because success in action depends on the idea of right. Thus. and they operate in the minds of the judge while reaching a particular decision.

The effect is not only to create a fear of the sanctions and cause the individual to adjust himself so as to be able to live without fear. working relentlessly according to the rules about sanctions. Ideas of a person are also branded by the society where we live in. especially in earlier years.  When he grows up and becomes acquainted with the conditions of life he is subjected to its influence.  Natural lawyers assert that it lies in natural law and natural law is binding because it is an article of faith but Professor Olivecrona says that the binding force of the law is a mirage of language. how the moral standards of every single individual are fashioned and what is the influence of the use of force according to the rules of law in this respect. Most people have the feeling of being bound by the law.  He suggests that the character of a person is formed under the influence of his surroundings.  In that form they are communicated to young and old. This power is surrounded by august ceremonies and met with a traditional and deep-rooted reverence. There is no independent force which exist outside the mind. Now these imperatives are absorbed by the mind. The suggestive effect of the imperatives is enormous when there is power behind them. The rules also have a positive moral effect in that they cause a deposit of moral ideas in the mind. Law is one of the foremost forces working within the society. It is just an idea in the individual mind.The rules of law are independent imperatives.the person because of the psychological pressures which exert an influence in his conduct. We speak of a moral command when an independent imperative has been completely objectivated and therefore is regarded as binding without reference to an authority in the outer world. All this combines to make a profound . We take them up and make them an integral part of our mental equipment. forbidding the actions or ordering them to be done. This motives him for regularity of behaviour.  He tried to resolve the questions as to.  Several things explain how the rules of law can thus be absorbed by the whole people.A firm psychological connection is established between the idea of certain actions and certain imperative expressions.here the majestic power of the state.

 These norms are effectively followed because they are felt to be socially binding by the Courts and other legal authorities which apply the law. A norm is valid if it is predictable that court will apply it. validity of law lies in the predictability of decisions.  According to Ross. the actual past behaviour of the judge as well as the set of ideals by which he motivated must be taken into account in order to determine the predictability of the law in future. law are legal norms in which directives addressed to the court. he said that law is binding whether or not it is inconsistent with morality. Valid law implies the abstract set of normative ideas which serve as a scheme of interpretation for the phenomena of law in action.impression on the mind. causing us to take the fundamental “commands” of the law to heart as objectively binding.  He also disagrees that binding force of law lies in the consent of State or will of State. Alf Ross  Like Olivecrona.  These norms consists of two types which are norms of conduct which deals with behavioural aspect of law and norms of competence of procedure which prescribe the mode of procedure to be followed for determining the norms of conduct. Norms are therefore observed as law because they are felt by the judge to be socially binding and therefore. . We do it all the more readily since we understand.  Divorcing morality from law. obeyed.  He pointed out that while deciding a case. he also asserts that that law must be interpreted as conceptions of social reality which is nothing but the actual behaviour of man in the society.  He follows the American line approach and accepted the authority of court to expound law. at least instinctively. the necessity of these rules for the maintenance of peace and security. In his view.

a true science like any other concerned with facts and events in the realm of casualty. . the realists hold that law in uncertain and indeterminable in nature therefore. “realist school has sought to liberate the judges from the enslavement of unduly rigid legal concepts and exorted them to take into consideration the ground realities of social facts while deciding the cases”. For them law can be explained only in terms of observable facts. If then those notions are dismissed as mere metaphysical will-o’-wisps. all such notions as the binding force or validity of law. the existence of legal rights and duties. is. certainty of law is a myth. because it expects that law should function to meet the ends of society. realist movement is an ‘attempt to rationalize and modernize the law. Thus. As Frank Jerome rightly pointed out. According to Friedmann. It is positivist in the sense that it undertakes the study of law as it is. with no actual existence other than in some imaginary metaphysical world.both administration of law and the material for legislative change. therefore. Opposing positivist’s view. and sociological. and the study of such facts. He considers realism as a combination of the positivist and the sociological approach. what is left for the legal scientist? Contribution of Realism The main contribution of realists to jurisprudence lies in the fact that they have approached law in a positive spirit and demonstrated the futility of theoretical concepts of justice and natural law.Scandinavian Realism as a Whole The Scandinavian Realist. by utilizing scientific method and taking into account the factual realities of social life. resemble other modern schools in their positivist outlook in their desire to eliminate metaphysics. “Realist movement is a gloss on the sociological approach to jurisprudence”. which is the science of law. For Julius Stone. and the notion of property are dismissed as mere fantasies of the mind.

The legislature may meet the situation by amending the rules to remind the judges that they must not depart from the. But this is not the general practice in the judicial world.Criticism against Realism as a whole not only Scandinavian  Hart  Hart says that judges have got a discretion to decide but we cannot brush aside the fact that there is a general framework of rules which they work. If judges depart widely from rules. judges might always first reach their decisions intuitively or by hunches and then pick up the authorities or rules which suit their judgments. It embodies accepted legal standards.  Realists ignore the fact that law is based on social practice. they will invite criticism from the legal community.  It is possible that in a given society. . It is true that in some place that law has an open texture that can be interpreted in more than one way by judges but still rules play their part.